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GAZETTE
SEPTEMBER 1979
The Child and the Law —
The practising lawyer's viewpoint
By Denis Greene, Solicitor
(Paper read to Law Society Seminar on "The Child and the Law" on 15th September 1979).
Though this paper is, for the most part, based on
experience of cases in which I have acted as Law Agent to
the Eastern Health Board I speak in my personal capacity
as a solicitor in private practice and die views expressed
are personal ones.
When one hears of violence done to a baby or young
child it is easy to react emotionally and feel that the
battering parent or other adult responsible should be
treated with the utmost rigour that the law allows.
Unfortunately, it is a sad feature of these cases that
violence in the home can be handed down from
generation to generation. One would think that a battered
child, when grown up and becoming a parent, would avoid
the very thing that caused such suffering to him/her in
childhood. Yet experience shows that a battered child
can, in adulthood, become a battering parent. One must
remember that in these situations we are dealing with
problem people and that invoking the sanctions of the
criminal law is not the best way of trying to improve the
home conditions.
As an indication of the background in many cases of
child violence I quote from a book
"Web of Violence"
1
by
J. Renvoize, Ruttledge, 1978, which is a survey of a lot of
the research work done by various people and agencies on
the subject of violence in the home. The quotation reads:
"To sum up, most battering parents are inadequate,
self-defeating, introverted, immature people who
need love but find difficulty in giving it; who want
gratification for their impulses
now,
not next week;
who often love their children and show great
concern for them but whose live is inconsistent and
incapable of standing up to the stresses life can
inflict; who in a few extreme cases hate their
children or are totally incapable of ever rearing a
child satisfactorily and from whom the children
must be taken. Frequently clinically neurotic or
depressed, they usually have a poor sense of identity
and very little self-esteem, and live isolated lives
(particularly the mother). Although they yearn to
behave differently they cannot help inflicting on
their own children their own style of upbringing.
Finally, frustrated in their life-long desire to be
loved and cherished, they nurse bitter anger along
with their guilt, hidden from authority with whom
they still (how well the lesson has been learned)
attempt to appease".
Given that background you will appreciate more fully my
point that we are dealing with problem people and that
invoking the sanctions of the criminal law is not the best
way of dealing with them.
A natural urge to be angry with defaulting parents
must not be allowed to displace the necessity to see the
parents as human beings who may themselves be problem
people in need of help.
The basic Act under which social work agencies and
social workers have to act in the interests of children at
risk is the Children Act 1908 ("the 1908 Act"). It is
primarily concerned with offences against and by
children. The social work agencies as we know them
today, which are concerned with the social aspects of
problem families and the protection of children at risk, did
not exist in 1908 so it is not surprising that the steps
available under the 1908 Act to protect children are not
in accord with modern social work needs. Time does not
permit me to analyse the 1908 Act in detail so I will limit
myself to touching briefly on three procedures which are
the ones most readily available when action is required to
protect children.
Procedure under Section 20:
Section 20(1) of the 1908 Act reads:
"A constable, or any person authorised by a
Justice, may take to a place of safety any child or
young person in respect of whom an offence under
this part of this Act, or any of the offences
mentioned in the First Schedule to this Act, has
been, or there is reason to believe has been,
committed".
The Section then goes on to provide that a child may be
detained until he can be brought before a Court of
summary jurisdiction. The Section further provides that
the Court may make an Order dealing with the child as
the circumstances may require until a reasonable time has
elapsed for a charge to be made against the person
committing the offence and, if a charge is brought, until it
has been determined by the conviction or discharge of the
person. If the charge is dismissed or is dropped the Order
affecting the child then lapses. In brief, therefore, this
Section is really only providing for the holding of a child
while consideration is given to the bringing of a criminal
charge against a person committing an offence against the
child and, if a charge is brought, until it is disposed of.
Section 20 of the 1908 Act is of value in providing a
means for securing the immediate temporary protection of
a child against whom an offence has been committed. But
the Section does contemplate that there may or will be a
criminal prosecution in respect of the offence. If a parent
or guardian is the party who has committed the offence a
criminal prosecution may only add to the difficulty of
trying to deal with a disturbed home background out of
which the offence has arisen so Section 20 provides a
remedy of only limited value.
Procedure under Section 24
The next relevant procedure is under Section 24 of the
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